Attacking Probable Cause from a Drug Dog’s Alert: Look at the Dog’s History and Check the Dashboard Video

A Salt Lake City police officer was staking out a house for drug and gang activity. He checked the plates of a Cadillac parked in front of the house and found that it lacked insurance and its registration had expired. When a man and a woman got into the car and began to drive away, the officer stopped them. Two minutes later an officer arrived with a K-9 patrol dog with narcotics detection training. This officer thought the car matched the description given of a vehicle involved in a robbery. While the first officer’s questioning continued, the second brought his dog to the passenger side of the Cadillac, where, according to the handler, the dog alerted. The handler then allowed the dog, named Oso, inside the car where the handler said that he alerted to the front seats. He opened a fanny pack on the seat and found a Ruger semiautomatic handgun.

The driver, William Vincent Clarkson, was indicted for possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1) (“It shall be unlawful for any person (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm or ammunition….”). Clarkson moved to exclude the canine evidence based on the dog’s lack of reliability. The trial court denied the motion, saying that the officers reasonably relied on Oso’s alerts, and noting that in Illinois v. Caballes, the Supreme Court said only that a sniff should be performed by a “well-trained narcotics-detection dog.” 543 U.S. 405, 409 (2005).

Clarkson appealed. The Tenth Circuit held that there was a reasonable articulable suspicion for the initial stop, the questioning of the driver, a pat-down of the driver to check for weapons, and the initiation of the dog sniff. What the Tenth Circuit was not satisfied about was whether the dog’s alerts (outside and inside the car) had provided probable cause for the subsequent search. The Tenth Circuit said that probable cause could not simply be established by the fact the officers had no evidence the dog was not reliable. The circuit court said that this would amount to a good faith justification for a search and “would minimize motivation for police officers to ensure a dog is actually trained or reliable before deploying it.”

The circuit court did not think it was asking for much. All the prosecution had to do was show that the dog had been certified, or that its training had been sufficient to reach a certification level. Oso had, in fact, not been certified, as an injury prevented him and his handler from completing the final two weeks of an eight-week training program. It would generally have been relatively simple to establish that the dog could do the job anyway but two things got in the way: the defense counsel was not asleep at the wheel, as too often happens with canine evidence, and the whole traffic stop was caught on video. These two factors merged when the defense hired an expert, Steven Nicely, who noticed that Oso’s alerts from the handler’s descriptions were not consistent with what was visible on the video of the traffic stop, where the dog seemed primarily to bark outside the vehicle and did not lie down inside the vehicle as the handler had described.

Nicely also noticed that the video demonstrated that Oso did not stay with a “closed-mouth sniff” through the procedure. Nicely testified that without actively sniffing, Oso would have been unable to properly detect drugs. Even more serious, Nicely suspected that the handler might have been cueing the dog to alert when they approached the passenger side door. The handler also told Nicely that he was thinking of changing the dog’s alert from a passive alert (usually sitting or lying down) to an aggressive alert (such as scratching or biting). That meant that the dog’s alert had not been fixed, which meant to Nicely that Oso had not received enough training.

The dog’s training records were apparently so sparse that Nicely could not form an opinion as to what the dog had actually learned. The district court held that the defendant had satisfied his burden of demonstrating that Oso was unqualified to serve as a narcotics detection dog at the time he was deployed in this case. The search of the vehicle was therefore not supported by probable cause. The handgun was suppressed. U.S. v. Clarkson, 2007 WL 2406942 (D.Utah 2007), 551 F.3d 1196 (10th Cir. 2009), on remand, 2009 WL 1651043 (D.Utah 2009).

Nicely has become the bane of detection dog handlers. As far back as 1996, defense counsel in a traffic stop set up something of a sting operation to see if Illinois state troopers were targeting black and Hispanic drivers for traffic stops and dog sniffs. A private investigator involved in this effort was stopped and a trooper’s dog alerted, resulting in a fruitless search. Nicely provided a report that persuaded the court that the handler was not automatically entitled to qualified immunity. A recent Eight Circuit case quoted Nicely as saying that an Iowa state trooper was not a well-trained detector dog handler and his dog was not a well-trained detector dog. U.S. v. Winters, 600 F.3d 963 (8th Cir. 2010). Nicely’s testimony has not been restricted to narcotics detection dogs. In a 1998 Texas case, he testified that an accelerant detection dog’s handler was not training his dogs in such a way as to produce reliable results. Another witness argued that the dog may have detected mineral spirits, not gasoline. Fitts v. State, 982 S.W.2d 175 (Tex.App. – Houston 1998).

Courts have not always been impressed by Nicely, however. See U.S. v. Prokupek, 2009 WL 2634446 (D.Neb. 2009) (“The Court does not find the Defendants' expert, Steven Douglas Nicely, credible. His relevant experience is lacking. The other expert testimony clearly established Rocky's certification and reliability using accepted familiar standards. Rocky positively alerted and indicated to the presence of drugs in the car, and Prokupek clearly appeared under the influence.”). Even more critical was U.S. v. Olivares-Rodriquez, 2010 WL 1137498 (N.D. Iowa 2010), a case where the handler said the dog gave an aggressive alert outside a vehicle that turned out to contain cocaine. The dog jumped up against the rear bumper, gave a scratch, then repeated this action twice more. Nicely argued that the handler, by tapping the vehicle, and saying “Drugs, check!” was cueing the dog. The prosecution’s expert argued that the handler was just indicating where the dog should sniff. The court agreed with this expert, and leveled a jab directly at Nicely:

“The court further finds that although Nicely appears to have considerable experience in the area of dog training, his testimony in this case is not entitled to any weight. Indeed, his statement that he was 99% certain the dog just happened to pick up the boot where the drugs were located without picking up any scent from the drugs was ludicrous.”

Sentences like these will ricochet among litigators looking for experts in cases with canine aspects, and the district court’s assessment could reduce Nicely's value to the defense bar. I advise experts who testify a lot, and particularly who expect an income from testifying, be careful what cases you take, and don’t always work for the same side.

For more on how a dog's history can be brought into a probable cause hearing, see the decision of the South Dakota Supreme Court in State v. Nguyen, 726 N.W.2d 871 (Sup.Ct. 2007). The court found three divergent views as to how a drug dog's reliability may be shown:

1. Jurisdictions deeming a dog reliable solely by showing dog was trained and certified.
2. Jurisdictions deeming a dog's training and certification prima facie evidence the dog is reliable, shifting the burden to the defense to challenge the presumption.
3. Jurisdictions that require or allow a dog's field activity reports, along with evidence the dog is trained and certified, to be considered in determining reliability.

The court also noted that a number of appellate courts have found the decision ultimately rests with the trial court. See also the Ohio appellate decision, also involving Nguyen, State v. Nguyen, 157 Ohio App.3d 482, 811 N.E.2d 1180 (2004).